Lawson v. Commissioner of Social Security Administration

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Amanda Lee Lawson,
Plaintiff,
v.
Commissioner of Social Security
Administration,
Defendant.
No. CV-24-03149-PHX-KML (JZB)
REPORT AND RECOMMENDATION
TO THE HONORABLE KRISSA M. LANHAM, UNITED STATES DISTRICT
JUDGE:
Plaintiff Amanda Lawson seeks judicial review of a decision by the Commissioner
of the Social Security Administration (“SSA”) denying her application for Social Security
Disability Insurance (“SSDI”) benefits. (Doc. 1 at 1.) Because the Parties agree that the
Administrative Law Judge (“ALJ”) committed harmful legal error by improperly rejecting
Plaintiff Lawson’s testimony and the opinion of her treating neurologist, the Court
recommends that the ALJ’s decision be reversed. Furthermore, because Plaintiff’s treating
neurologist’s opinion—credited-as-true—establishes that Plaintiff cannot engage in
substantial gainful work that exists in the national economy, the Court recommends that
the case be remanded for calculation and award of benefits.1
I. Background.
On November 9, 2021, Plaintiff Lawson filed a Title II application for SSDI benefits
1 The Court issues the present Report and Recommendation pursuant to the
November 19, 2024, Order of the District Court. (Doc. 12.)
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based on an alleged disability beginning on October 19, 2018—i.e., the Alleged Onset Date
(“AOD”). (Administrative Record (“AR”) at 15.) Plaintiff’s Date Last Insured (“DLI”) for
SSDI benefits was on December 31, 2022. (Id. at 17.) At the time of filing, Plaintiff was
35 years old and had a twelfth-grade education. (Id. at 191, 207.) Prior to filing her Title II
application, Plaintiff had worked during the preceding 15 years, but “did not engage in
substantial gainful activity during the period from her [AOD] of October 19, 2018, through
her [DLI] of December 31, 2022. (Id. at 18, 191–92.)
Through Plaintiff’s DLI, she had a number of severe impairments, including:
“Ehlers Danlos Syndrome[], Mast Cell Activation Syndrome[], Postural Orthostatic
Tachycardia Syndrome[], Hashimoto’s thyroiditis, migraines, deep vein thrombosis[],
Chron’s disease, lumbar stenosis, degenerative disc disease, obesity, depression, somatic
symptoms disorder, a mild neurocognitive disorder, and anxiety.” (Id. at 18.) While the
ALJ determined that Plaintiff had the aforementioned “severe impairments,” he found that
they were insufficient to make Plaintiff disabled under the Social Security Act. (Id. at 18,
28–29.)
II. The ALJ’s Five Step Process.
To be eligible for SSDI benefits, a claimant must show that:
(a) [they] suffer[] from a medically determinable physical or mental
impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months; and
(b) the impairment renders [them] incapable of performing the work that
[they] previously performed and incapable of performing any other
substantial gainful employment that exists in the national economy.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). If
both elements are fulfilled, the claimant is disabled under the meaning of the Social
Security Act. Apfel, 180 F.3d at 1098.
An ALJ will apply a five-step analysis to determine whether a claimant is disabled
under the Social Security Act:
The five-step process for disability determinations begins, at the first and
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second steps, by asking whether a claimant is engaged in “substantial gainful
activity” and considering the severity of the claimant’s impairments. See 20
C.F.R. § 416.920(a)(4)(i)–(ii). If the inquiry continues beyond the second
step, the third step asks whether the claimant’s impairment or combination
of impairments meets or equals a listing under 20 C.F.R. pt. 404, subpt. P,
app. 1 and meets the duration requirement. See id. § 416.920(a)(4)(iii). If so,
the claimant is considered disabled and benefits are awarded, ending the
inquiry. See id. If the process continues beyond the third step, the fourth and
fifth steps consider the claimant’s “residual functional capacity” (“RFC”) in
determining whether the claimant can still do past relevant work or make an
adjustment to other work. See id. § 416.920(a)(4)(iv)–(v).2
See Kennedy v. Colvin, 738 F.3d 1172, 1174–75 (9th Cir. 2013).
Under the five-step analysis, the claimant has the burden of proof for steps one
through four. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).
At step four, the ALJ analyzes whether, considering the claimant’s RFC, if they “can return
to substantial gainful activity performed in the past.” Id. at 1223. “If, at step four, ‘a
claimant shows that he or she cannot return to his or her previous job, the burden of proof
shifts to the Secretary to show that the claimant can do other kinds of work.’” Garrison v.
Colvin, 759 F.3d 995, 1011 (9th Cir. 2014) (quoting Embrey v. Bowen, 849 F.2d 418, 422
(9th Cir. 1988)).
In the case at hand, the ALJ—applying the five-step analysis—found that Plaintiff
Lawson was not disabled within the meaning of the Social Security Act. At the first step,
the ALJ determined that Plaintiff had not engaged “in substantial gainful activity during
the period from her [AOD] of October 19, 2018, through her date last insured of December
31, 2022.” (AR at 18.) At the second step, the ALJ determined that Plaintiff had a number
of severe impairments,3 noting that the “medically determinable impairments significantly
limit the ability to perform basic work activities . . . .” (Id.) At the third step, the ALJ did
2 “The recent changes to the Social Security regulations did not affect the familiar
‘five-step sequential evaluation process.’” Woods v. Kijakazi, 32 F.4th 785, 787 n.1 (9th
Cir. 2022) (quoting 20 C.F.R. § 404.1520(a)(1)).
3 As noted above, the severe impairments are “Ehlers Danlos Syndrome (EDS), Mast
Cell Activation Syndrome (MCAS), Postural Orthostatic Tachycardia Syndrome (POTS),
Hashimoto’s thyroiditis, migraines, deep vein thrombosis (DVT), Chron’s disease, lumbar
stenosis, degenerative disc disease, obesity, depression, somatic symptoms disorder, a mild
neurocognitive disorder, and anxiety.” (AR at 18.)
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not find any of Plaintiff Lawson’s impairments to meet or exceed “the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404.1526).” (Id.) Because these impairments were not automatically
disabling, the ALJ proceeded to the fourth step. See (id. at 18–19.)
At step four, the ALJ found that Plaintiff was “unable to perform past relevant work
as actually or generally performed[,]” but “had the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b)[.]”4 (Id. at 19, 27.) Specifically, the ALJ
found the findings of state agency medical consultants Coffee, MD (“Consultant Coffee”)
(AR 60–79), and Hutchinson, DO (“Consultant Hutchinson”) (AR 82–96), persuasive. (Id.
at 26–27.) First, Consultant Coffee opined that Plaintiff “could perform light work, sit for
six hours and stand/walk for six hours.” (Id. at 26.) Second, Consultant Hutchinson “found
that [Plaintiff] is not disabled.” (Id. at 27.)
Most notably for this matter, the ALJ found that the opinions of Dr. Saperstein—
Plaintiff’s treating neurologist—were unpersuasive. (Id. at 26.) Specifically, the ALJ states
that: (a) Dr. Saperstein’s opinions “do not appear to be supported by treatment notes”; (b)
that his “detailed letter . . . contains a lot of conclusory language”; (c) that his visits with
Lawson were conducted through telehealth; and (d) that his observations were “rendered
after the [DLI] although he states that the limitations go back to 2019.” (Id.) As discussed
below, both Parties agree that the ALJ did not articulate the consistency of Dr. Saperstein’s
opinions as was required by the relevant regulations. See (docs. 27 at 20 & 28 at 6); see
also 20 C.F.R. § 404.1520c(a) (“The most important factors we consider when we evaluate
the persuasiveness of medical opinions and prior administrative medical findings are
supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this
4 Specifically, Plaintiff Lawson could:
occasionally climb ramps and stairs, balance, stoop, kneel, and crouch. The
claimant can never climb ladders, ropes or scaffolds or crawl. The claimant
can occasionally be exposed to extreme temperatures, humidity and wetness,
and workplace hazards, such as unprotected heights and moving mechanical
parts. The claimant can perform simple, routine tasks. The claimant can make
simple work-related decisions.
(AR at 19.)
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section).”) (emphasis added).
Finally, in step five, the ALJ determined that through the DLI, “there were jobs that
existed in significant numbers in the national economy that [Plaintiff] could have
performed.” (AR at 27.) Therefore, the ALJ concluded that Plaintiff Lawson “was not
under a disability, as defined in the Social Security Act, at any time from October 19, 2018,
the [AOD], through December 31, 2022, the [DLI].” (Id. at 28.)
III. Legal Standard.
Generally, a Court will not upset the SSA’s disability determination unless that
determination “contains legal error or is not supported by substantial evidence.” Orn v.
Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “‘Substantial evidence’ means more than a mere
scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person
might accept as adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028,
1035 (9th Cir. 2007).
The Court must consider the record in its entirety, “weighing both the evidence that
supports and the evidence that detracts from the Commissioner’s conclusion . . . and may
not affirm simply by isolating a specific quantum of supporting evidence.” Id. (cleaned
up). “Where evidence is susceptible to more than one rational interpretation, it is the ALJ’s
conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005);
Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989) (“But, as we reiterate in nearly every
case where we are called upon to review a denial of benefits, we are not triers of fact.”).5
The Court may affirm an ALJ’s decision even if they made an error, “so long as the error
was harmless, meaning it was inconsequential to the ultimate nondisability determination.”
Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). Additionally, “[w]e review only the
reasons provided by the ALJ in the disability determination and may not affirm the ALJ on
a ground upon which he did not rely.” Garrison, 759 F.3d at 1010.
5 In Defendant’s Response brief, Defendant attributes the following quote to Bowen:
“[A]court ‘may not substitute its judgment for that of the [ALJ].’” (Doc. 28 at 4.) This
quote does not appear anywhere in Bowen. See generally Fair v. Bowen, 885 F.2d 597 (9th
Cir. 1989). Counsel for Defendant is reminded of their Rule 11 obligations when they
submit a document to the Court. See Fed. R. Civ. P. 11(b).
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IV. Discussion.
There are two issues to be addressed by this Court. First, whether the ALJ committed
harmful legal error when it rejected the assessment from Plaintiff Lawson’s treating
neurologist, Dr. Saperstein, and failed to provide specific, clear, and convincing reasons to
reject Plaintiff’s symptom testimony. Second, whether remand for further proceedings or
for payment of benefits is apt under the credit-as-true standard.
A. Legal Error.
Both Parties submit, and the Court agrees, that the ALJ committed harmful legal
error by improperly rejecting Dr. Saperstein’s opinion and Plaintiff Lawson’s testimony.
Under 20 C.F.R. § 404.1520c, the ALJ must “articulate how persuasive it finds all of the
medical opinions from each doctor or other source, and explain how it considered the
supportability and consistency factors in reaching these findings.” Woods v. Kijakazi, 32
F.4th 785, 792 (9th Cir. 2022) (citing 20 C.F.R. § 404.1520c(b)) (cleaned up). Regarding
an individual’s own testimony:
When an [ALJ] determines that a claimant for Social Security benefits is not
malingering and has provided objective medical evidence of an underlying
impairment which might reasonably produce the pain or other symptoms she
alleges, the ALJ may reject the claimant’s testimony about the severity of
those symptoms only by providing specific, clear, and convincing reasons
for doing so.
Brown-Hunter v. Colvin, 806 F.3d 487, 488–89 (9th Cir. 2015).
The ALJ failed to fulfill either requirement. First, as both Parties assert, the ALJ
failed to address the consistency factors to discredit Dr. Saperstein’s opinion. See (doc. 27
at 19) (Plaintiff noting that “[t]he ALJ committed materially harmful error by rejecting the
assessments from Dr. Saperstein without providing sufficient explanation that included . .
. failing to explain the consideration of the supportability and consistency factors under the
agency’s regulations”); see also (doc. 28 at 6) (Defendant noting that “[t]he ALJ therefore
did not articulate the consistency of Dr. Saperstein’s opinions as required by the applicable
regulations”).
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Second, both Parties find that the ALJ’s rejection of Plaintiff’s testimony regarding
her conditions was in error for failure to provide specific, clear, and convincing reasons for
doing so. See (doc. 27 at 24–30) (Plaintiff noting in the heading of section B that “[t]he
ALJ committed materially harmful error by rejecting Lawson’s symptom testimony in the
absence of specific, clear, and convincing reasons supported by substantial evidence”); see
also (doc. 28 at 10) (Defendant noting in the first paragraph of section B that “[t]he ALJ
here only clearly discounted Plaintiff’s symptom testimony based on objective evidence,
without plainly identifying other reasons for rejecting the testimony”). Because this matter
is not in dispute by the Parties,6 and because the ALJ committed harmful legal error by
improperly rejecting Dr. Saperstein’s opinion and Plaintiff Lawson’s testimony, the Court
recommends that the ALJ’s decision be reversed and remanded.
B. Credit-as-True Standard.
The issue in dispute is whether this matter should be remanded for further
proceedings or for payment of benefits under the credit-as-true standard. Generally, “the
proper course, except in rare circumstances, is to remand to the agency for additional
investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004)
(quoting Immigr. & Naturalization Servs. v. Ventura, 537 U.S. 12, 16 (2002)). However,
when an ALJ has committed reversable error, the Court may “remand for further
proceedings or for an award of benefits is within our discretion.” Holohan v. Massanari,
246 F.3d 1195, 1210 (9th Cir. 2001); Garrison, 759 F.39 at 1019 (“[I]n appropriate
circumstances[,] courts are free to reverse and remand a determination by the
Commissioner with instructions to calculate and award benefits.”). However, “[a] claimant
is not entitled to benefits under the [Social Security Act] unless the claimant is, in fact,
disabled, no matter how egregious the ALJ’s errors may be.” Strauss v. Comm’r of the Soc.
Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011) (citing Briscoe ex rel. Taylor v. Barnhart,
6 See, e.g., Violet G. v. Kijakazi, No. 21-CV-2105 (TNL), 2023 WL 2696594, at *6
(D. Minn. Mar. 29, 2023) (“It is undisputed that the ALJ did not address the supportability
factor when considering the persuasiveness of Dr. Dickens’ opinion as required by 20
C.F.R. §§ 404.1520c and 416.920c. The ALJ’s failure to do so is a legal error that warrants
remand.”) (cleaned up).
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425 F.3d 345, 357 (7th Cir. 2005) (“Obduracy is not a ground on which to award benefits;
the evidence properly in the record must demonstrate disability.”)).
To determine whether it is appropriate to remand back to the ALJ to calculate and
award benefits, the Court applies the credit-as-true standard, which requires that:
(1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has failed to provide
legally sufficient reasons for rejecting evidence, whether claimant testimony
or medical opinion; and (3) if the improperly discredited evidence were
credited as true, the ALJ would be required to find the claimant disabled on
remand.
Garrison, 759 F.3d at 1020. In evaluating a claimant’s case under the credit-as-true
analysis, the Court “consider[s] whether the record as a whole is free from conflicts,
ambiguities, or gaps, whether all factual issues have been resolved, and whether the
claimant’s entitlement to benefits is clear under the applicable legal rules.” Treichler v.
Comm’r of the Soc. Sec. Admin., 775 F.3d 1090, 1103–04 (9th Cir. 2014). Accordingly,
where it is “clear from the [AR] that the ALJ would be required to award benefits if the
claimant’s” proffered evidence was credited-as-true, the Court “may remanded for an
award of benefits instead of further proceeding[s.]” Id. at 1100.
In analyzing whether remanding for award of benefits is proper in this case, the
Court finds the U.S. Court of Appeals for the Ninth Circuit’s decision in Trevizo v.
Berryhill instructive. In Trevizo, the Ninth Circuit analyzed whether to remand for benefits
or further proceedings where the ALJ had “failed to provide legally sufficient reasons for
rejecting the informed medical opinion of Trevizo’s primary treating physician.” Trevizo
v. Berryhill, 871 F.3d 664, 683 (9th Cir. 2017). In the case, the Court found that Trevizo
had suffered from a myriad of impairments7 and was hospitalized on several occasions—
7 See, e.g., Trevizo v. Berryhill, 871 F.3d 664, 669 (9th Cir. 2017) (“Trevizo suffers
from uncontrolled Type II diabetes, psoriasis, hypertension, high cholesterol, chronic
lumbago, invertebral disc degeneration, psoriatic arthritis, and mild scoliosis. Since 2008
she has also experienced migraines, Achilles tendinitis, heel and Achilles bone spurs,
vaginitis, urinary tract infections, pelvic inflammatory disease, fatigue, weakness, and
several bouts of conjunctivitis. Her past surgeries include carpal tunnel surgery on both
wrists, a hysterectomy, gallbladder removal, an appendectomy, partial intestinal surgery,
and a colonoscopy in which a large polyp was removed. In March 2012, Trevizo was
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much like Plaintiff Lawson. See id. at 669. And, similarly to the present litigation, the ALJ
denied that Trevizo had a disability, wrongly discrediting her treating physician. See id. at
674, 677. The Court of Appeals, finding that the record was “extensive,” that the ALJ
committed legal error rejecting the treating physician’s opinions, and that there was “no
serious doubt” she was disabled, accordingly remanded the case to the ALJ for the
calculation and award of benefits. Id. at 682–83 (cleaned up).
Now, it is of course true that Trevizo and the case at hand are not carbon copies of
one another. For example, Trevizo was 65 years old whereas Lawson is currently 39 years
old. See id. at 668. But such age difference has not precluded the U.S. Court of Appeals for
the Ninth Circuit from remanding a case for calculation and award of benefits in the past.
See, e.g., Newton v. Saul, 839 F.App’x 178, 179 (9th Cir. 2021) (remanding for calculation
and award of benefits, and noting that “[e]ven though the claimant in Trevizo was older
than Claimant is . . . , a younger age alone does not preclude an award of benefits.”).
Based on the facts of the case and Ninth Circuit precedent, the Court concludes that
the present case satisfies all three credit-as-true standards. On the first element, Defendant
alleges that: (1) the AR is not fully developed as there are conflicting opinions from the
state agency medical consultants; and (2) Dr. Saperstein did not conduct a tilt table test for
Plaintiff’s POTS. (Doc. 28 at 7–9.) In response, Plaintiff asserts that conflicting medical
opinions in light of the consistent medical opinion of the agency’s non-examining reviewer
“do[es] not overwhelmingly support remand for further proceedings over payment of
benefits” as conflicting medical opinions “exist in almost every Social Security case . . . .”
(Doc. 29 at 7.) Additionally, regarding the fact that Dr. Saperstein did not conduct a tilt
table test, Plaintiff asserts that “the extensive course of treatment [Dr. Saperstein] ordered
provided underlying support for the assessed limitations as they relate to POTS, even in
the absence of confirmation via tilt table tests.” (Id.) The Court agrees with Plaintiff.
In the case at hand, the over 6,000-page AR is replete with evidence supporting the
opinions of Dr. Saperstein and Plaintiff’s own testimony. The AR is clear that the Plaintiff
admitted to the emergency department complaining of chest pain, and she was released
upon treatment. Throughout this period Trevizo has been severely or morbidly obese.”).
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has continuously complained of a plethora of symptoms related to conditions such as
Postural Orthostatic Tachycardiac Syndrome (“POTS”),8 Ehlers Danlos Syndrome
(“EDS”),9 and Mast Cell Activation Syndrome (“MCAS”),10 and was treated for those
conditions. Beyond these complaints, the record details the numerous hospitalizations and
doctors’ visits Plaintiff had since her AOD. Most importantly, Dr. Saperstein’s “opinion is
developed and substantiated by his long-term treatment relationship with” Lawson, much
like in Trevizo. Trevizo, 871 F.3d at 683. Therefore, remand for further administrative
proceedings would serve no useful purpose as the record has been fully developed.
The other two credit-as-true factors are also satisfied in this case. Regarding the
second factor, for the reasons noted above, it is clear—and no Party disputes—that the ALJ
committed harmful legal error in discrediting Dr. Saperstein’s opinion and Plaintiff’s own
testimony. And, in crediting the improperly discredited evidence as true, Plaintiff is
disabled under the Social Security Act. Specifically, by crediting as true Dr. Saperstein’s
opinion on Plaintiff’s limitations,11 it is clear that she is disabled, because the vocational
8 (AR at 280, 921–33, 940, 1059–60, 1069, 2069, 2074, 3445–46, 3452, 3565, 3716,
3906, 5967, 5973, 5979, 5985.)
9 (AR at 925–26, 2069, 2074, 3445, 3565, 4134–53, 4749–50, 5973, 5979, 5985.)
10 (AR at 3445–46, 3565, 5967, 5973, 5979, 5985.)
11 Specifically:
[Patient (“PT”)] is clearly disabled and has extensive limitations. Pt is
incapable of even a low stress job. The pt is only able to sit for about 20 mins
at a time and less than 2 hours total in a day. Pt can stand/walk for less than
5 mins at one time and less than 2 hours total in a day, but symptoms such as
severe pain, exhaustion, weakness, etc. are exacerbated. Pt must lay down
regularly throughout the day to rest. Pt can lift about 10 pounds occasionally
and nothing repetitive. Pt is currently limited on outings due significant
triggers that exacerbate their complex symptoms. Pt struggles with multiple
ADLs and requires the assistance of others for multiple activities including,
but not limited to cooking, preparation of food, cleaning, and more. Pt shows
inability to work due to the incapability to focus due to multiple, complex
disabling conditions such as significant pain and other debilitating
symptoms. Pt spends a significant portion of their week . . . seeing the many
medical providers for their disabling conditions and the rest of the time is
recovering from those appointments. Pt is continuing to work hard with their
health care, but at this time would be unable to manage working even a part
time position. The pts conditions are chronic and lifelong requiring regular
and consistent treatment with a variety of medical professionals. While Pt
may go into remission with some of their symptoms it is unlikely, they will
ever be able to work and will remain disabled. It is not just one disabling
condition, but multiple disabling conditions that cause numerous
complications that correlate with each other causing significant
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expert testified that someone with such limitations would be unable to find work.12
Further, the Court finds Plaintiff is entitled to benefits because the presence of
conflicting opinion and the lack of a tilt table test are insufficient to create a factual dispute
precluding immediate award of benefits. First, conflicting medical opinions have not
precluded remanding for calculation and award of benefits in the past. See, e.g., Holohan
v. Massanari, 246 F.3d 1195, 1205–06, 1210–11 (9th Cir. 2001) (remanding for award of
benefits even where the record reflected five examining physicians, two of which supported
claimant’s claim of disability); Hendrix v. Comm’r of the Soc. Sec. Admin., No. CV-23-
01113-PHX-DLR, 2025 WL 829786, at *3 (D. Ariz. Mar. 17, 2025) (remanding for
calculation and award of benefits in light of conflicting medical opinions because “[t]he
other medical opinions available assess different limitations, but they d[id] not address
[claimant’s] chronic vomiting at all”). Second, the lack of a tilt table test alone appears
insufficient to ignore the corpus of evidence showing Plaintiff’s limitations, from her own
medical records to the opinions of Dr. Saperstein. See, e.g., Wengraf v. Comm’r of Soc.
Sec. Administration, No. CV-23-01853-PHX-JJT, 2024 WL 3948519 (D. Ariz. Aug. 27,
2024) (remanding for calculation and award of benefits, even where there was conflicting
evidence, because “the record is fully and extensively developed, such that further
proceedings would be unproductive”).
Because the combination of Plaintiff Lawson’s severe impairments would preclude
complications.
(AR at 4125–26.)
12 The Court finds the following testimony by the vocational expert informative:
Q. Thank you. And if I were to add on the Claimant needed to be off task for
more than ten percent of the workday or would miss two or more days per
month, would those or any other jobs be performable?
A. Your Honor, there’s nothing in the DOT about absenteeism or being off
task, but in my experience there would be no work for such individual.
* * *
Q. Okay. And if the Claimant had to lay down three times during the day for
at least ten minutes, would they be able to perform competitive work?
A. I think [that] would be disruptive. And there’s nothing in the DOT about
that but I would think that would be disruptive to the worksite to a degree
that employers would not be able to accommodate that.
(AR at 57–58.)
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her from doing her previous work and preclude her from “engag[ing] in any other kind of
substantial gainful work which exists in the national economy,” 42 U.S.C. § 423(d)(2)(A),
the Court finds that she is a disabled individual under the Social Security Act. To remand
for further proceedings in this case “would be unduly burdensome” for Plaintiff who has
sought SSDI benefits since October of 2018, see Terry v. Sullivan, 903 F.2d 1273, 1280
(9th Cir. 1990), and “would create an unfair ‘heads we win; tails, let’s play again’ system
of disability benefits adjudication.” Benecke, 379 F.3d at 595.
V. Conclusion.
For the foregoing reasons, the Court finds that the ALJ committed harmful legal
error when he improperly discredited Plaintiff’s treating neurologist’s opinions and
rejecting Plaintiff’s symptom testimony. Furthermore, the Court finds—in crediting said
evidence as true—that Plaintiff is disabled under the meaning of the Social Security Act.
Therefore, the Court recommends that the ALJ’s decision be reversed and remanded for
calculation and award of benefits.
Accordingly,
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IT IS RECOMMENDED that the April 9, 2024, decision of the ALJ be
REVERSED, and this matter be REMANDED for the calculation and award of benefits.
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, should not be filed until entry of the district court’s judgment. The
parties shall have 14 days from the date of service of a copy of this Report and
Recommendation within which to file specific written objections with the Court. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days
within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the
Magistrate Judge will be considered a waiver of a party’s right to appellate review of the
findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s Report
and Recommendation. See Fed. R. Civ. P. 72.
Dated this 20th day of November, 2025.
Honorable John Z. Boyle
United States Magistrate Judge
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